Legal Fictions: ‘Kill All the Lawyers’

legal pad

The first thing we do, let’s kill all the lawyers.

King Henry VI, Part II, Act IV, Scene II

Everyone knows that line from Shakespeare. What they forget is that it’s said by one of a group of conspirators who are plotting to overthrow the king and put another man on the throne.

The conspirators are the comic relief in this play. They don’t speak in iambic pentameter, and the would-be king is a delusional man whose claim to the throne is absurd. Even his followers think he’s an idiot – or at least the butcher, who gets this line, does.

That is, it was a lawyer joke. I bet it got a huge laugh from the groundlings and maybe even from the rich folks when the play premiered.

I’ve seen it on t-shirts – worn by lawyers. Lawyers, in fact, are the best source of lawyer jokes:

Q: What do you call 5000 dead lawyers at the bottom of the ocean?
A: A good start!

Q: Why don’t sharks attack lawyers? A: Professional courtesy.

The Devil approaches a lawyer and says, “I’ll make you the wealthiest, most celebrated and admired lawyer in the nation. All you have to do to attain this status is pledge to me the souls of your wife and children.”

The lawyer ponders on this for a few moments, then looks up and says, “OK, but what’s the catch?”

It seems everyone hates lawyers, even other lawyers. I’d be willing to bet that some lawyer in a “white shoe” law firm – a long-established firm that represents wealthy people and big corporations – coined the term “ambulance chaser” to describe lawyers who file negligence suits for people injured in accidents.

People consider lawyers dishonest and think a “good lawyer” is one who will break the rules for you. And everyone hates the idea that lawyers can win a case on a “technicality” – except, of course, their clients.

In fiction, when lawyers aren’t crooks, they’re pompous, stuffy, and arrogant.

I’d like to take issue with all those descriptions. Well, maybe not arrogant. But the rest of them.

In my experience, most lawyers are honest. Despite what people think – and what a good joke it makes – legal ethics isn’t an oxymoron. But the rules that govern lawyers are different from those that lay people – non-lawyers – play by.

For example, in the U.S. (or the U.K., or a number of other countries), if I knew someone committed murder, I would feel a moral obligation to turn them in. But if I were that person’s lawyer, I would have the duty to defend them regardless of their guilt.

Good criminal defense lawyers know that most of their clients are guilty – that is, they’re not naïve. But at the same time, they believe they’re entitled to good representation. The real bad lawyers are the ones that don’t work hard for their clients, but just go through the motions to get paid.

James Simon Kunen, who worked as a public defender in Washington, D.C., wrote a good book on this subject called How Can You Defend Those People? It’s the best explanation of how good criminal defense lawyers think I’ve ever seen.

While a lawyer’s primary duty is to their client, there’s always a little tension, since a lawyer is also an officer of the court and swears an oath to uphold the law. So the duty is to represent the client fully, but to follow the rules. If the law says you have to turn over evidence or notify the other party of something, you have to do it. And you can’t knowingly let a witness lie in a court hearing.

(Failure to turn over evidence to the defense attorney recently brought down a prosecutor turned judge here in Texas, after some committed lawyers and the Innocence Project managed to prove he’d withheld evidence from the defense in a case where an innocent man spent 25 years in prison. Texas Monthly has a thorough wrap-up of the case.)

When it comes to duty to the client and duty to the system, the same general rules about duty to the client and duty to the court apply in both civil and criminal cases. At the heart of all this is what is called the adversary system: the idea that each side in a dispute has the right and obligation to present their case – within the rules – to a neutral fact finder (judge or jury), who will determine the outcome.

Most U.S. lawyers I’ve known believe that the adversary system is the best possible way to settle disputes. They know the system is imperfect, that some parties to litigation have more money or better lawyers, but they still believe that, on the whole, this is the best way to resolve a dispute.

And when I say they believe it, I mean they sincerely believe it, whether they work for legal aid or one of the richest law firms in the country. Law professors may write treatises questioning whether the adversary system leads to just outcomes, but the average lawyer doesn’t question this tenet.

So lawyers, when they talk about their clients in public, are always advocating for them. Some of what they say may sound absurd – especially when it’s obvious to everyone that their client did cause the massive oil spill in the Gulf of Mexico (just as an example) – but their job is to be their client’s representative even if their client is a full-fledged bad guy.

Back when I was in law school, I interned in the office of the juvenile public defender in Austin. My boss described his role as the lawyer for kids charged with crimes in old fashioned western terms: a gunslinger, a hired gun.

I think that image resonates with lots of lawyers.

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Legal Fictions: ‘Kill All the Lawyers’ — 14 Comments

  1. In your opinion, how accurate are the depictions of lawyers on TV? I know that Perry Mason, for instance, is wildly fictional. So much of the popular image of just about everything is driven by TV and movies. (And why do I not look like Lucy Liu? I ought to.)

    • I haven’t been watching much television lately, so my thoughts are likely out of date. I recall that I liked the old show The Practice because it got a lot of things right (though the sex and the dramatic plots were a little over the top).

      It seems to me that criminal defense lawyers aren’t well portrayed in most cop shows. Often, when a defendant requests a lawyer, the lawyer makes a feeble effort to get the client to shut up, and then sits by idly while the defendant confesses. Of course, the shows tend to present things from the pov that the cops are morally right (even if they violate the law to get the perp).

      Going way back, the character Veronica Hamil played in Hill Street Blues did a good job of showing a defense attorney sticking to her guns even when pressured to go along with the cops, and even when she knew her client was guilty. Lawyers really do that.

      On the whole, though, I wouldn’t recommend using either movies or TV as a guide to lawyer characters. If you’re going to do a trial scene, I’d recommend going down to court and watching some cases. Unfortunately, it’s a little tricky to watch the real nitty-gritty — the negotiations between lawyers, the conferences with the judge, the lawyer dealing with a client.

      The Kunen book I mentioned in the post will give you some of that, though. There are probably some good books out from the prosecution side as well. (Note to self: check out nonfiction works on lawyers and come up with a good research list.) One of the best books on civil litigation I’ve ever read is A Civil Action by Jonathan Harr. I haven’t seen the movie, so I don’t know if it does as good a job, but the book really details the fight of a lawyer over toxic environmental issues. I’m familiar with the litigation that underlies the book, so I know it’s accurate. And it’s a real page-turner — reads like a novel.

      BTW, most lawyers don’t look like the actors who play lawyers on TV, either. It wouldn’t hurt reality if more of them were ordinary looking, bad dressers, a little pudgy, etc.

  2. One of the most accurate TV depictions of legal work was The Guardian, starring Simon Baker and Dabney Coleman. You actually see them sitting around researching and writing, which is pretty much how lawyers spend most of their day. In fact, the first episode is particularly amusing when high flying corporate lawyer Nick Fallin, who has been sentenced to work at a community legal aid agency as his community service requirement stemming from a drug charge, shows up at court and confesses to the woman handing him the file of a kid he’s to represent at a hearing, that he’d never appeared in court before, and didn’t know what to do. That’s much more typical of the experience of a lawyer in a big firm than the multiple daily court appearances you see on legal TV shows. (There is a lot of court time in the show from this point, but it is appropriate to the nature of public advocacy.)

    IMO, if you have a big problem and have a lawyer as a friend, he/she is your best friend.

    • I haven’t seen that show, but that sounds good. When I used to work for a legal services program in DC that specialized in housing, I noticed that lawyers from big firms who represented tenants pro bono (for free as a public service) often didn’t know how to handle a defense against an eviction.

  3. Try “Fireball” by Robert Begam. Written by a trial lawyer, it’s a very good novel about the litigation surrounding an explosion of a liquid propane rail tank car in a small town. The lead defense and plaintiff lawyers are both stars and between them do a great job of articulating the various arguments about tort litigation. It’s also a good look at some of the maneuvering that goes on in complex litigation.

    • If I had it to do over, I wouldn’t have gone. But there are things I value about it. It’s useful to know how the system works, plus it gave me an edge as a woman in a sexist world.

  4. Ah, the future of law. Like this?

    You may notice that all the jokes tend to assume the lawyers are litigators. A lot never see the inside of a courtroom from year to year.

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